Second Opinions Blog

The industry's top independent medical evaluation service provider offers timely information on a wide range of medical news and claims management topics - all in the name of helping you manage injury claims in the most efficient and cost effective manner.

One simple technique interviewees can use is to (silently) repeat every question that is asked of them back to themselves before answering. This focuses the interviewee on comprehension and cognition rather than prediction, which will help the interviewee limit her response to what was in fact asked and not on what her predictive mind assumed was asked. This also may be effective because the prediction happens so quickly and over such a short period of time. According to the authors of the study, “[A]nticipation may precede perception by as little as 200 milliseconds…” This is an incredibly short time interval and any device that an interviewee can employ to slow cognition down will allow her to limit the tendency to anticipate where the speaker is going with a question and instead to hear the actual question that is asked.

One of the things that our brains do brilliantly well is to construct order of the world around us. This predictive aspect of speech is part of that. We are hard-wired to recognize patterns and make connections; hence, we gravitate to coherent narrative versions of events. It is difficult for our brains to process events without linking them together causally. Our conversations reflect this tendency as well. In fact, when people do not conform to the normal way conversation works in this regard it is noticeable and such speakers often seem odd, idiosyncratic, or eccentric.

The problem with the predictive process of speech and our tendency to turn our conversations into coherent narratives is that it inhibits our ability to ask the right questions and give the best answers. When taking a statement, the interviewer should keep in mind that the process is not a conversation in the ordinary sense of the word. That is why, for example, it is imperative to wait until the interviewee completes her response to each question before moving on to the next one. While normal conversation works better when we allow the predictive aspect of conversation to fulfill its function, in a statement the predictive aspect can lead the interviewer away from valuable areas of inquiry simply by virtue of dovetailing the interviewer’s thoughts about what to ask next with the interviewee’s response. Instead, interviewers should be mindful of the process and ask questions that occasionally interrupt the narrative flow to keep her attention focused on what the interviewee is actually saying. One such strategy could involve interjecting questions about an unrelated topic periodically. For example, during questions about the facts of an accident the interviewer might want to ask a question about current prescriptions that the interviewee takes. The question will feel strange when asked, but it is surprising how quickly this jars the interviewer back to the kind of focused attention that is necessary to obtain an effective statement. And that, after all, is the goal.

Evidence continues to mount that arthroscopy to treat osteoarthritis of the knee is no better than sham surgery or conservative care. The German Institute for Quality and Efficiency in Health Care (IQWiG) published a final report (executive summary available here) on May 12, 2014 that consisted of a meta-analysis of various studies comparing arthroscopy to various modalities, including sham surgery and strengthening exercises. The report’s authors concluded that:

While this information is not new, it bolsters the conclusion that arthroscopy to treat osteoarthritis of the knee is no more effective than other modalities, including conservative care and doing nothing. The standard of care does appear to be shifting toward the abandonment of arthroscopy to treat osteoarthritis of the knee; however, the procedure is still performed occasionally. In managing claims, it is important to ensure that approval for any arthroscopic knee procedure be based on evidence-based medicine. Insurance carriers should not be expected to bear the cost of procedures the benefit of which “is not proven.” In addition, injured plaintiffs and employees should not be expected to bear the risks of surgical complications and extended recovery periods for procedures the benefit of which “is not proven.”

One of the problems we face in claims administration is that many of our decisions are made in the context of uncertainty. For example, we may know that the plaintiff is credible, but that the mechanism of injury is questionable and the defense has a strong IME report. The claims and legal professionals must determine (among other things) the plaintiff’s likelihood of succeeding on the question of whether an injury occurred based upon the available information. The problem is that this judgment is a guess (though hopefully an educated one) based on experience and the available information. There is no definite or fixed answer. In order to make such decisions effectively, we need to know what is fact, what is inference, what is loose conjecture, and what information is likely to be discoverable or otherwise available that will make the guess more educated. Once we have this information, we can determine what aspects of the claim are uncertain or ambiguous and develop a strategy to deal with them.

This brings us back to Brewer’s strategies for combating cognitive biases and making effective decisions. His second strategy asks us to:

“Be clearly and explicitly aware of gaps in available information.”

Recognize when a conclusion is reached or a decision is made in the absence of complete information and be able to tolerate the ambiguity and uncertainty.

Recognize when one is taking something on faith without having examined the “how do we know…” questions.

We normally live with and tolerate an enormous amount of ambiguity and uncertainty in our lives without paying much attention to it. In fact, imperfect knowledge is the general and pervasive condition of human life. However, when we assess claims, we become acutely aware of ambiguity and uncertainty and recoil from it. Why? We recoil because ambiguity and uncertainty foil our attempts to predict the outcome of claims and hence drive us crazy. Nonetheless, it is critical that we be able to make effective claims decisions against a background of ambiguity and uncertainty. And the key to making effective decisions in the context of ambiguity and uncertainty is to specifically and accurately identify what is known (and hence certain) and what is not known (and hence uncertain). Doing so will help us accurately evaluate the strength of our current position, reveal what we can do to obtain more information, and allow us to make rational decisions without ignoring or being paralyzed by ambiguity and uncertainty.

Once we have asked the “how do we know…” questions, we are in a position to organize what we know. What we know in any claim falls into several categories.

Knowledge based on objectively verifiable evidence (factual knowledge) – The employer report of injury notes that the employee reported an injury that occurred on Y date three days later on X date;

Inferences based on evidence (which will always be imperfect knowledge with gaps, the imperfection being, after all, the nature of inferential reasoning) – The employee actually reported the injury to the employer on the date stated on the form. This is not a fact – we infer that the reporting occurred on the date stated because we assume, for whatever reasons (or lack thereof), that employers accurately record the date that employees report injuries;

Loose conjecture based on limited evidence, what might also be called a “guess” – A gap between the date of injury and the report of injury suggests the claim is suspect. But why?

That which we know we do not know or that from which no clear causal or consequential effect can be drawn or predicted – A gap between the date of injury and the report of injury, without further information, is ambiguous because equally plausible competing inferences can be drawn from it – employee didn’t report injury because it didn’t seem that bad at the time v. employee didn’t report injury at time because it actually happened outside of work;

That which we know would strengthen inferences, prove conjecture, and remove ambiguity and uncertainty – Employee alleges a work-related rotator cuff tear in his dominant shoulder occurred on Y date but employee pitched a whole game in an adult league baseball tournament over the weekend before reporting the injury on X date (the inference is that the employee could not have pitched in a baseball tournament if he suffered a rotator cuff injury at work before the tournament);

That which we know potentially exists and may be relevant but about which we have no knowledge and which eludes our best conjecture (the infamous “unknown unknowns” in Rumsfeldian parlance) – A video tape surfaces showing the employee at the tournament, but shows that he did not play and was holding his shoulder in a protected manner (this is a highly unlikely occurrence but fits in the category of “we know a bombshell can be dropped but, by definition, if it is a ‘bombshell’ the actual content of the bombshell cannot be predicted”).

To accurately judge the claim, it is important to understand the gaps in available information and to understand when our conclusions are not supported by factual knowledge. Take the dictum that a delay in reporting an injury increases the likelihood that the injury is fraudulent. To believe this, one must make assumptions that may or may not be supported by actual evidence. It is important when evaluating a new claim that we understand what these assumptions are before we make a judgment regarding the validity of the claim.

First, accepting the dictum as true assumes that there is statistical support for it. If there is not, the dictum is the equivalent of an old wives tale. This is not to say that it may not be true, but without statistical support for it then it is equally plausible that the dictum is false. Thus, the dictum should not be taken to demonstrate the strength or weakness of a claim without the existence of additional supporting evidence such as the softball tournament example above. Despite the lack of statistical support for the dictum that delayed reporting increases the likelihood that a claim is fraudulent, numerous insurance professionals, companies, and even state agencies continue to hold the dictum out as if it had some sort of predictive significance.

Second, accepting the dictum can actually create a selection bias in which late reported claims receive a higher level of scrutiny and more intense investigation than claims with contemporaneous reporting. If one believes based on experience that late reported claims are more frequently bogus than timely reported claims, one must actually investigate her claim handling history and measure the level of scrutiny given to the separate claims to determine if there is any truth to the dictum. In order to determine if there is a probable statistically significant effect in a retrospective investigation, at a minimum you would have to include only those timely reported claims that receive the same or similar level of scrutiny and investigation to late-reported claims for comparison to at least attempt to eliminate selection bias. Without making this investigation, the dictum that late-reported claims are more likely to be fraudulent has no basis in fact and is likely to skew results in a way that confirms the dictum.

When managing claims, it is important to consider why a decision is being made and whether the decision is based on factual knowledge, an inference, or an assumption that has been “taken on faith.” Any claim will have ambiguity and uncertainty. This is normal. When the ambiguity and uncertainty are identified, they can be factored into the assessment of the claim and will help generate the strategy for developing the claim (which will be the topic of the next post in this series). When deciding to give a claim heightened scrutiny or making any other tactical decision, the decision will be more effective and will likely yield better results if it is based on factual knowledge than if it is based on an unsupported assumption. The only way to ensure that the decision is based on factual knowledge is organize what you know. Once the knowledge in a claim has been organized, it is easy to identify if something is being taken on faith rather than fact.

Medical News Today reported on a piece in Neurology (subscription required) in which researchers conducted memory studies on retired French workers who had been exposed to solvents during their working years. The specific solvents included benzene, chlorinated solvents, and petroleum solvents. The retirees had been out of work for an average of 10 years and the average age of study participants was 66. The results demonstrated that only 18% of the persons tested had no memory impairment. This statistic is more troubling in context: only 16% of the persons tested had no exposure to solvents. Another troubling aspect of the study is that it found that persons with high but distant solvent exposure (31-50 years prior to testing) still demonstrated measurable cognitive deficits.

While it would be too early to draw definitive conclusions from the report, it seems likely that the findings will prompt further investigation. If subsequent studies confirm the researchers’ conclusions, it certainly could prompt claims by those exposed to the offending solvents through their employment. This is significant because chlorinated solvents and petroleum solvents are found in such common items as cleaners, degreasers, and paint. Exposure to these products is regulated, but if new information becomes available that demonstrates the level of exposure that causes harm is lower than previously thought then employees in such occupations as commercial housekeeping and painting who suffer cognitive decline that would have been attributed to other factors may now connect the cognitive decline to solvent exposure on the job. Obviously the effect on worker’s compensation claims would be significant as would the likely third party claims against the manufacturers of the solvents.

In the last post, we discussed a paper Jeffrey Brewer wrote regarding strategies for overcoming cognitive biases and emotions. Brewer identified 10 specific strategies to overcome biases and emotion. His first strategy advocates consciously raising the questions:

What do we know…?

How do we know…?

Why do we accept or believe…?

What is the evidence for…?

But how does this help us? Don’t we already essentially do this when we analyze claims?

Not exactly. First, asking the questions immediately changes one’s state of mind from its natural, emotionally reactive state, to one in which reason is brought to the forefront. Consciously asking the questions forces us to slow down, search for, and contemplate the possible answers. Second, answering the questions quickly demonstrates whether something is an objectively verifiable fact, an inference, hearsay, opinion, or pure conjecture. Once the questions are answered and the information is categorized, the process will have naturally organized the claim in a rational way. Third, knowing what category the information falls into can provide a roadmap for developing the claim. Fourth, asking and answering the questions is likely to result in a more accurate assessment of liability, damages, exposure, and further investigation needed.

How can this strategy be applied to claims? The place to start is at the beginning of the process. When a claim comes in, we are given information asked to apply the information to a metric for assessing exposure. The formality of the metrics will vary, but the best companies and firms mechanize this process to the greatest extent possible to streamline the process and to make it as consistent as possible. This is of course why all case assessment reports, forms, and letters look roughly the same for each entity that generates them regardless of who actually wrote them. This predictability and uniformity is a virtue, not a vice. Nevertheless, individual claims professionals must judge where each piece of information goes and its significance.

The two most important parts of a case assessment report, form, or letter will generally be the statement of facts or narrative summary. It is from this that the conclusions regarding liability, damages, and exposure will be drawn. In preparing the statement of facts, it can be a useful exercise to distinguish between facts, opinion, hearsay, and assumptions to better understand the support for the claim or its defense. For example, take a claim where an employee X injures his hand on a piece of equipment. In conducting the investigation, the employer obtains a statement from employee Y who has observed X using the equipment for personal use in the past.

In this example, the only thing that is a fact is that Y observed X using the equipment for personal use in the past. If the statement is used to support the defense that the employee was not performing work for the benefit of the employer at the time of injury, then an inference is being made that X’s behavior at the time of injury was consistent with X’s past behavior. With no additional information or support, the inference is weak at best. In order to strengthen it, one could find out if X used the equipment for personal purposes at certain times of his shift or after certain jobs and whether the injury occurred at a similar time of day or after the same kind of job. In addition, the inference would be stronger if Y observed X using the equipment for personal use regularly or on many occasions, especially if the most recent uses were near in time to the accident. The bottom line is that the fact of the observation only affects the injury at issue if it can be inferred from the observation that the behavior leading to the injury likely conformed to the observed past behavior.

In another example, worker’s compensation investigations often discover a coworker who overheard the injured employee complaining about his job or the company or both. Specifically, assume employee X alleges he hurt his low back lifting a heavy object at work. The investigation discovers that employee Y heard employee X say that he was fed up with his manager and couldn’t take much more. What is fact? The only fact is that on one date X complained about his manager and said he couldn’t take much more. That is it. X’s statement does not mean that X feigned injury or exaggerated its severity. To move from X’s statement to that conclusion is an inference that requires additional information for it to be believable. The inference is that X reached some sort of breaking point and is using the work injury (or feigning injury altogether) as a means of avoiding his manager.

When judging the significance of the statement, several factors must be considered. Obviously if the injury is relatively near in time to the statement, it would appear more likely that they are related. Other factors could make the inference stronger as well, such as similar, repeated comments, a discernible change in performance, a discernible change in attendance, or any overt conflicts with his manager. On the other hand, if X was a generally good employee who was having a bad day and significant time elapsed between the remark and the injury with no further overt evidence of conflict with the manager, then the inference is weak. Likewise, in judging the likelihood that X is avoiding work based on the prior statement, one must consider the benefit to X of being absent (avoiding the manager, not having the responsibilities of the job) with the costs of being absent (wage loss, benefits loss, loss of social contact with coworkers, etc.). In this case, if X only made one statement and the injury involves an extended absence with significant financial consequences, the inference will be weaker.

In order to effectively determine the strengths and weaknesses of any claim, we must be able to ask and answer the right questions. Simply recording a narrative of events without asking whether each component is a fact, an inference, hearsay, or opinion will skew the analysis badly. For every piece of the narrative, we should ask how we know it, why do we believe it, and what evidence supports the belief. Once we take this step, we will understand the extent of our knowledge, whether our knowledge is based in fact, the inferences that can be drawn from our knowledge of the facts, how strong those inferences are, and what additional evidence or information should be obtained to strengthen inferences or eliminate ambiguity and uncertainty. When we know this, we can effectively assess liability, damages, and further claims investigation necessary.

We recently published a couple of posts about the impact of cognitive biases and emotion on decision making. In the posts, we offered some suggestions on how to limit biases and emotions in order to make better decisions. Recently, we came across a paper by Jeffrey W. Brewer, a member of the Risk and Reliability Department at Sandia National Laboratories, that discusses strategies for overcoming cognitive biases and irrational risk perception. Brewer’s specific discussion deals with overcoming biases in the context of explaining the benefits of nuclear power; however, his general discussion offers a number of strategies that can be applied in any business setting.

Brewer reduces the strategies to a simple statement that focuses on thinking carefully, question assumptions, and using the best available evidence:

While not every decision in the medico-legal-claims environment requires such careful attention, we do make high stakes decision involving significant monetary sums that can have profound impacts on employers, employees, and health care providers. When we are tasked with making such important decisions, we should make an effort to ensure that we are making the best decision possible based on reason and the best available evidence. Following Brewer’s strategies can help us do just that.

Although some of Brewer’s strategies are self-explanatory, some of them are not and all would benefit from a more extended individual treatment. Over the course of the next few posts, we will address Brewer’s strategies in more detail, explaining exactly what each strategy means, why each strategy is important, and how each strategy can be implemented, using practical examples.

Medical News Today reports on a recent finding from Johns Hopkins that most spine surgeons do not follow recommendations for presurgical screening for depression and anxiety. This is significant because depression and anxiety are known to increase recovery times and reduce the likelihood of a successful outcome. According to one researcher quoted in the Medical News Today article,

Interestingly, the study found that surgeons in private practice and at community hospitals were more likely to provide presurgical screening than were surgeons affiliated with university hospitals. In addition, surgeons with more than 15 years of practice and those performing 200+ spinal surgeries per year were more likely to provide screening.

Considering the enormous expense of spine surgery, it would seem wise for claims handlers to exert whatever influence or control available to ensure that claimants receive proper presurgical psychological screening before undergoing recommended spine surgery. This also seems to be an area in which the insurance industry (including group health carriers) could and should exert its influence to make presurgical psychological screening mandatory in spine surgery cases.

Many of us are in the business, directly or indirectly, of employee health and well-being. From a purely economic standpoint, employee health and well-being is a significant cost driver in any business. In the medico-legal world we are often at the intersection of disease status/health and employment. Historically, businesses have analyzed health and injury claims made to assess employee health, which was then used as a predictor of worker productivity.

Claims made is an easy but de facto method of measuring employee health. In addition, claims made do not capture other stressors that may impact productivity such as financial problems, family strife, etc. Claims made also fail to capture disease status/health that could result in claims made but are, for myriad reasons, not. For example, an employee with a chronic health condition may be on her spouses insurance and hence have claims that would otherwise be made but instead go unreported. Also, an employer with poor or no insurance is likely to have a claims history that does not accurately reflect the health status of its employees and how this impacts productivity.

This disconnect between health and well-being frequently plagues worker’s compensation claims. Surely we have all been dogged by the employee whose behavior seems considerably more impaired than the objective physical findings suggest. Frequently we look to issues like symptom magnification, malingering, or secondary gain to explain this perplexing behavior. Perhaps, we should instead be asking targeted questions to get at the person’s overall well-being. If the root cause of the disconnect between behavior and objective physical findings can be identified, at a minimum the behavior will be less perplexing and it may offer the opportunity to solve an otherwise vexing claim.

Patients often confuse positive findings on diagnostic imaging studies and what the findings mean for their personal health. For example, many studies demonstrate that asymptomatic persons who undergo MRI scans of their shoulder, knee, neck, or back frequently demonstrate positive findings, especially in persons over 40. In the case of a shoulder this may be in the form of shoulder impingement or rotator cuff pathology. A knee scan may demonstrate a torn meniscus. A neck or back scan may show a herniated disk. The question for the healthcare market generally is whether positive findings in asymptomatic individuals lead to increased healthcare costs.

Unfortunately but not surprisingly, much research finds that positive findings on diagnostic imaging scans of asymptomatic persons lead to increased medical interventions and costs. This is particularly problematic in the context of back and neck pain. According to the Journal of the American Board of Family Medicine, spine surgery rates are highest where spine imaging rates are highest. www.jabfm.org/content/22/1/62.full.pdf. As the authors note

A large part of the problem may be due to a misunderstanding of pain and an overconfidence in the abilities of medicine to manage it. Most people who suffer from chronic or recurrent pain assume that if a specific cause of the pain can be identified and once identified the specific cause can be ‘fixed,’ which will remove the pain. Unfortunately, chronic or recurrent conditions often do not work this way. For example, degenerative arthritis is not susceptible to easy fixes and requires a strategy of management and tolerance rather than futile and expensive searches for cures. As the JABFM article points out, “there are no ‘magic bullets’ for chronic back pain, and expecting a cure from a drug, injection, or operation is generally wishful thinking.”

The fact of life is that there are often no panaceas for age-, genetic-, or disease-related degenerative conditions. “Patients need realistic expectations despite product marketing, media reports, and medical rhetoric that promise a pain-free life.” It is hard to keep expectations realistic when being besieged by marketing, media reports, and medical rhetoric. Our desire for efficiency, to find the fastest, easiest solution to any problem, further complicates the ability to maintain realistic expectations. Not only are we inundated with messages that tell us the answer to our problem is easy, we are also biologically programmed to seek the easiest solution. This is most unfortunate because with chronic conditions like joint pain or back pain, the most effective treatment is usually one that requires lifestyle changes, which indubitably is not the easiest solution. Hence, losing weight, increasing activity, pursuing a targeted home exercise program, and psychologically conditioning oneself to deal with persistent pain will bring the most relief but is probably the last option most persons will want to pursue.

The medicolegal world often confronts the difficulty of imaging studies creating problems where none previously existed. This can be devastating in the context of chronic pain because, as noted above, increased imaging tends to lead to increased surgical intervention. And if the imaging study finds an asymptomatic lesion, operating on an asymptomatic lesion or condition will not fix the chronic pain. It is important that we in the medicolegal world ask healthcare professionals to follow evidence-based standards for performing imaging studies in the context of musculoskeletal complaints. If imaging studies are not indicated, they should not be performed for the simple reason that the likelihood of an asymptomatic lesion or pathology being discovered is substantial, which is likely to merely induce the patient to fixate on the lesion or pathology as causative of his or her problem. This fixation often results in increased medical expenses, unnecessary interventions, and increased disability. To the extent that medicolegal professionals can require treating physicians follow evidence-based treatment guidelines, they should. One mechanism for doing this is through the IME. To be most effective in this regard, it may be advisable to ask the IME physician a specific question related to what evidence-based treatment guidelines apply and should be followed.

To accomplish the targeted care, general practitioners participating in the study gave patients a 9 part questionnaire to evaluate the severity of their back problems. Patients were then placed low risk, medium risk, and high risk categories, with treatment individualized based on the level of risk. Importantly, the low risk patients were not given intensive treatment but were simply reassured about their back pain and given strategies for managing it. Medium and high risk patients received "more intensive treatments led by [physical therapists]."

Prior research found that targeted treatment of back pain was effective, but this is the first evidence that targeted care is effective at the family practice level of care. Medical News Today quotes Professor Alan Silman, medical director of Arthritis Research UK:

Critically, the research found that the targeted approach to back pain does not increase costs. Whether the results can be duplicated remains to be seen, but the study offers a promising method for early, cost-effective intervention in persons suffering from back pain. The fact that the protocol resulted in a 50% reduction in workplace absence is remarkable and reason enough to attempt to replicate the findings so they can be implemented as standard care in general medical practices. Professor Silman put it to Medical News Today best: